This is the paper I wrote for my Internet Law class at Georgia Tech, CS 4803, taught by Larry Keller. It is an introduction to and analysis of the issues surrounding the confrontation between (among?) Spocko/EFF and KSFO/ABC/Disney.

Note that while I am an EFF member, I feel that my analysis is relatively unbiased. However, I am not a lawyer, so I would advise taking my clearly marked “unsolicited advice” below with a metaphorical grain of salt. Kudos who anyone who got the joke in the title.

Introduction

Throughout 2006, “Spocko,” an anonymous (and previously unknown) blogger, posted on his blog called “Spocko’s Brain” about violent and inflammatory content on the Disney/ABC-owned radio station KSFO-AM. As part of his campaign, he used clips of KSFO content to illustrate the inflammatory content. He and readers of his blog sent messages to the station’s advertisers, suggesting that they pull their advertisements based on quotes and short clips (Garofoli), and that such a move would not infringe on KSFO’s free speech (Stark).

Frequently-used examples of KSFO content included: (About a black man in Lincoln, Nebraska:) “Now you start with the Sear’s Diehard the battery cables connected to his testicles and you entertain him with that for awhile and then you blow his bleeping head off.”; (About a protestor at a Cindy Sheehan event:) “Whoever did that should have been stomped to death right there. Just stomp their bleeping guts out.”; (About Nancy Pelosi:) “We’ve got a bulls-eye painted on her big laughing eyes.” There are many other examples similar to these in language, tone, content, etc (Stark).

Takedown notice

As a result of Spocko’s actions, multiple advertisers withdrew from KSFO (Garofoli), particularly the Brian Sussman show. That includes, but is not limited to, Netflix, MasterCard, Bank of America, and VISA (Siebert, Media Critic’s Blog…). Shortly after VISA’s withdraw from KSFO’s Melanie Morgan and Lee Rogers show, an ABC lawyer sent Spocko a Cease and Desist letter on December 21, 2006 (Zimmerman); it demanded that Spocko remove the audio clips from his blog because they were a “clear violation of KSFO’s copyright and other interests… [and] confirm that you … will discontinue use of all materials owned by KSFO” (Karpeh). He complied with the C&D, and removed the audio from his host, 1&1 Internet, within six hours (Spocko, It was Spocko’s Speech…). Despite his compliance with the C&D, ABC/Disney then sent a letter to 1&1 Internet, demanding that they shut down Spocko’s Brain. 1&1 Internet complied with ABC/Disney’s request (Spocko, It was Spocko’s Speech…), maintaining that Spocko had never removed the materials (Garofoli).

Within days, other bloggers took up Spocko’s cause, and the clips were posted “all over the web” (Garofoli). In addition, a “supportive YouTube video featuring some of the clips drew more than 31,000 viewers within days” (Garofoli). A few days after his blog was shut down by 1&1 Internet, Spocko had found a new host, Computer Tyme Web Hosting (Siebert, Bloggers Give Spocko…). Their hosting services were more expensive than 1&1 Internet (Zimmerman), but they are known for specializing in free speech web hosting (WebHostingStuff).

EFF response

Spocko then contacted the Electronic Frontier Foundation (EFF) for assistance (Electronic Frontier Foundation, Spocko, KSFO, and…). EFF is a non-profit organization dedicated to protecting freedom of speech on the internet, among other causes. Contemporaneously with Spocko’s joining with EFF, a KSFO talk personality claimed that Spocko was “[trying to] take away [KSFO’s] free speech rights.” However, as the EFF pointed out in a press release, there is no clause in the first amendment that protects the right to advertiser-supported speech (Electronic Frontier Foundation, Spocko, KSFO, and…).

On January 25, 2007, the EFF sent ABC/Disney a letter that responded to ABC/Disney’s Cease and Desist notice and affirmatively defended Spocko’s use of KSFO’s content (Zimmerman). Specifically, the EFF letter stated that Spocko was “engaged in criticism of KSFO-AM talk show hosts for language the New York Times recently described as ‘racially insensitive, religiously intolerant or containing violent imagery.’ In order to support his claims, and to allow his readers to consider the remarks themselves, Spocko posted short audio clips from the KSFO programs he was criticizing” (Zimmerman). According to Zimmerman and the Electronic Frontier Foundation, Spocko’s use of the KSFO clips fell squarely under fair use.

Definition of “fair use”

The first legal definition of copyright was given in the United Kingdom’s Statue of Anne in 1709. The statue did not allow for a reasonable use of copyrighted work, so courts established a policy of “fair abridgement” (later “fair use”) that defended the validity of said use notwithstanding the rights of copyright owners (Loren). It was solely in common law in the United States until the passage of the Copyright Act of 1976 (Wikipedia, Fair use), and is specifically codified in 17 USC § 107: “Limitations on Exclusive rights: Fair Use,” which states:

“Notwithstanding the provisions of 106 [“Exclusive rights in copyrighted works”] and 106A [“Rights of certain authors to attribution and integrity”], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

In describing fair use, Zimmerman also cited Elvis Presley Enterprises v. Passport Video,1 357 F.3d 896, 898 (9th Cir. 2003), Eldred v. Ashcroft,2 537 U.S. 186, 219-20 (2003), and Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990). In the former, it was stated that “[fair use of copyrighted works] is intended to preserve the values enshrined in the First Amendment” (Zimmerman). In the latter, it is stated that “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design. Although no simple definition of fair use can be fashioned, and inevitably disagreement will arise over individual applications, recognition of the function of fair use as integral to copyright’s objectives leads to a coherent and useful set of principles” (Leval).

Fair use analysis

Under 17 USC § 107, there are four criterion/factors used to determine whether a use of a copyrighted work is considered “fair use.” They are the “(1) purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) [and] the effect of the use upon the potential market for or value of the copyrighted work.”

Zimmerman’s response proceeds to analyze each of the four cited criteria with respect to Spocko’s use of the KSFO audio clips. The first criterion was “the purpose and character of the use… including whether such use is of a commercial nature…” (17 USC § 107). Spocko’s use was most certainly a non-profit educational purpose; Spocko did not and does not have advertisements on his blog; he was using it as a tool to inform and report on an activity (Massie). Zimmerman cites Chicago Board of Education v. Substance, Inc.,3 354 F.3d 624, 628 (7th Cir. 2003), which stated that “one office of the fair use defense is to facilitate criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticism intelligible. Copyright should not be a means by which criticism is stifled with the backing of the courts” (FindLaw, Chicago Board of Education v. Substance, Inc. 6). It should be noted that per Campbell v. Acuff-Rose Music, Inc.,4 Spocko could still claim fair use even if his criticism was partially or totally commercial, although being entirely non-commercial strengthens his case to some extent.

The second criterion under consideration is the “nature of the copyrighted work.” This clause distinguishes between works that are informational and those that are intended to entertain, with “[more] creative works falling ‘closer to the core of intended copyright protection.’ Campbell v. Acuff-Rose Music, Inc.,4 510 U.S. 569, 586 (1994); Wall Data Inc. v. Los Angeles County Sheriff’s Dept.,5 447 F.3d 769, 780 (9th Cir. 2006)” (Zimmerman). Also stated is that news reports “may be subject to liberal appropriation for fair use purposes. Party on Copyright, 10:138 at 10-346 (2006). See also, e.g., Nat’l Ass’n of Gov’t Employees v. BUCI Television, Inc.,6 118 F. Supp 2d 126, 129 (D. Mass. 2000)” (Zimmerman). The KSFO audio clips used by Spocko were intended to further his reporting and criticism of the station’s content. Given that the radio broadcasts were decidedly more “informational” than “creative,” the second criterion seems to be satisfied.

The third criterion is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” (17 USC § 107). Given that only short clips were used of a program that lasted hours (Zimmerman), and that “[t]he KSFO hosts themselves have repeatedly asserted that the clips amounted to anomalies or understandable slip-ups that occasionally occurred in the hundreds of hours per year that they collectively appeared on the air” (Kasindorf),7 the third criterion is most definitely satisfied.

The fourth and final criterion is the “effect of the use upon the potential market for or value of the copyrighted work” (17 USC § 107). Per Campbell v. Acuff-Rose Music, “when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because ‘parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,’ … the role of the courts is to distinguish between ‘[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.'”8 (FindLaw, Campbell v. Acuff-Rose Music). As such, the use of copyrighted materials in criticism and/or parody is strongly protected under fair use, even when it may cause financial damage (including lost ad revenue). This is precisely how Spocko was using the audio files, and what ABC/Disney intended to suppress with their Cease and Desist notice. “Far from being grounded in law, ABC/KSFO’s complaints amount to nothing more than an attempt to silence an effective critic” (Zimmerman).

Conclusions

Given that Spocko’s use of copyrighted KSFO content is clearly considered fair use under 17 USC § 107 (as established above), the ABC/Disney C&D order is meritless. Therefore, the EFF response to ABC/Disney’s C&D order stated: “Because those threats are legally baseless, they should not have been made in the first place. They have, however, caused Spocko harm and may continue to do so should they remain. In order to prevent any further harm to Spocko, we demand that you retract them immediately and do so in the same way the original claim was made: in a letter to 1&1 Internet, Inc., with a copy to us” (Zimmerman, emphasis added).

The end of the EFF response states that: “Moreover, please be aware that further misrepresentation aimed at silencing Spocko’s protected speech online may subject KSFO and ABC to liability under 17 USC § 512(f) (misrepresentation of liability under the Digital Millennium Copyright Act) and California’s Business & Professions Code § 17200 (prohibiting unlawful, unfair or fraudulent business practices)” (Zimmerman).

17 USC § 512(f) states that, “Any person who knowingly materially misrepresents under this section – (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it” (emphasis added).

17 USC § 512(f) is strongly worded, and is targeted at those who would suppress fair use. However, it may be difficult to prove that ABC/Disney knowingly misrepresented their position, even though it is highly unlikely that an entertainment lawyer would be unfamiliar with the fair use doctrine and its uses. Given that ABC/Disney has been informed by EFF (and legally “knows”) that the material is covered under fair use, any subsequent action in this vein against Spocko would be clearly actionable under 17 USC § 512(f). Other legal remedies are available for Spocko, however; he could sue, as ABC/Disney’s false statements of fact caused him financial damage. Also note that under the DMCA, 1&1 Internet is not liable for removing the content, and is under no obligation to do so in the first place.

Unsolicited advice

Assuming that ABC/Disney will not respond unless a lawsuit is involved, Spocko and EFF need to carefully consider the financial impact and potential judicial precedent of any legal action. However, filing a suit against ABC/Disney in order to force a settlement could be an effective tactic. The EFF has had a considerable amount of success in the past, even requiring a repeat offender to apologize to the internet (Electronic Frontier Foundation, DMCA Abuser…). EFF is also planning to pursue action against Viacom under 17 USC § 512(f)(b) due to a large number of DMCA takedown notices that were sometimes directed at non-Viacom content (Hefflinger).

Notes

1In Presley Enterprises v. Passport Video, the court concluded that based on the four fair use criterion in 17 USC § 107, Passport Video’s documentary The Definitive Elvis exceeded the fair use guidelines for copyrighted material for which it did not have an appropriate license. Specifically, the documentary used material which it did not discuss, it used a large portion of certain copyrighted materials, the use of the materials would limit the copyright holder’s ability to market the copyrighted work, and Passport Video intended to profit off of the use of said materials-i.e., the use was commercial (FindLaw, Elvis Presley Enterprises v. Passport Video).

3In Chicago Board of Education v. Substance, the board sued a Chicago public school teacher named Schmidt and a local newspaper called Substance whose target market is teachers. The Chicago Board of Education had created and copyrighted a series of standardized tests, which are governed by special consideration in copyright law given that the usefulness of the test depends on the continued secrecy of the contents. In January 1999, Schmidt published six such standardized tests in full in order to demonstrate their ineffectiveness. Among other conclusions, the court found his use of the material to be too broad because it destroyed the value of the tests, and that use of specific questions would have been more appropriate (FindLaw, Chicago Board of Education v. Substance).

4.1, 4.2In Campbell v. Acuff-Rose Music, Inc., the rap group 2 Live Crew created “Pretty Woman,” a parody of Roy Oribson’s “Oh, Pretty Woman.” The Supreme Court decided that “The commercial nature of a parody does not render it a presumptively unfair use of copyrighted material. Rather, a parody’s commercial character is only one element that should be weighed in a fair use inquiry.” (Wikipedia, Campbell v. Acuff-Rose Music, Inc.).

5In Wall Data Inc. v. Los Angeles County Sheriff’s Dept., the Los Angeles Sheriff’s Department installed software created by Wall Data for which they had 3,663 licenses on 6,007 computers. The 9th Circuit Court decided that the fair use defense did not apply as the copying was done to save the time and expense of installing individual copies; the Sheriff’s Department could have paid more money for additional licenses and did not (Higgins).

6In National Association of Government Employees v. BUCI Television, Inc., a candidate for Sheriff sued a newspaper for misparaphrasing him, accusing the publication of libel. The Texas Supreme Court ruled that given that the news accounts were “substantially true,” no harm was committed; additionally, their news report “consisted of constitutionally protected interpretation and analysis of a public figure’s political speech” (Texas Supreme Court, National Association of Government Employees v. BUCI Television, Inc.)

7The EFF brief cites Kasindorf’s article in USA today (Zimmerman). In particular, it uses the quote “Sussman repeated an apology for his Obama remark and said he sometimes went over the line in talking 20 hours a week” (Kasindorf).

8The quoted decision is from Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986) (FindLaw, Campbell v. Acuff-Rose Music). In that case, the fact that “the defendant had sought and was denied permission to use the plaintiff’s song had no bearing on liability when parody was at issue because ‘[t]he parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought'” (Colombia Law School, Fisher v. Dees).